Section 1.08 - Investigative Dispositions, Complaint Dismissals and Appeal(1)Types of Investigative Dispositions. The Commission may conclude the investigation of a complaint as follows:(a)Substantial Weight Granted to Investigation by Another Forum. After deferral of an investigation pursuant to 804 CMR 1.05(7), if it appears that the Commission's requirements and standards have been met, the Commission may accord substantial weight to the findings or resolution of the other forum and close the investigation or prosecute the complaint pursuant to 804 CMR 1.08(1)(f)1. or 3.(b)Withdrawal of Complaint. The Commission shall dismiss a complaint properly withdrawn pursuant to 804 CMR 1.04(12), although it may decide to file a Commission initiated complaint based on the same allegations pursuant to 804 CMR 1.18.(c)Lack of Jurisdiction. Whenever the Investigating Commissioner determines that the Commission lacks jurisdiction over the parties or subject matter of the complaint, the Investigating Commissioner shall dismiss the complaint and shall notify the parties in writing, stating the reasons therefor.(d)Administrative Dismissal. If the public interest so requires, the Investigating Commissioner may administratively dismiss a complaint for reasons including, but not limited to, bankruptcy, death of a party, inability to locate a party, adjudication by another forum, unreasonable refusal by complainant to cooperate with processing the case, failure to participate, or refusal to accept a reasonable settlement offer pursuant to the criteria of 804 CMR 1.09(11). Administrative dismissal shall be subject to the following provisions: 1. Before dismissing a matter because of inability to locate a party, the Commission shall provide notice to the party stating that the matter shall be dismissed if a response is not received within 30 days. Such notice shall be provided to the last address reported to the Commission by the party. The Investigating Commissioner shall allow 30 days for response before administratively dismissing the matter.2. Unreasonable refusal by complainant to cooperate with processing of the case may include, but is not limited to, failure to provide information, materials or responses which are necessary for investigation of the complaint, or failure to comply with an order issued by the Investigating Commissioner.3. When practicable, in any matter administratively dismissed, written notice shall be provided to the complainant, including the reasons for the dismissal.4. An administrative dismissal shall not constitute a final order for purposes of exercising rights provided under M.G.L. c. 151B, § 6 or M.G.L. c. 30A.5. The Investigating Commissioner may reopen an administratively dismissed case for good cause shown.(e)Settlement. The Commission may dismiss a complaint due to settlement of the complaint under the following conditions:1.Notification to Commission. Parties shall promptly notify the Commission in writing upon reaching a settlement.2.Review and Availability of Settlement Terms.a. The Investigating Commissioner may require the parties to submit the terms of such settlement in writing to the Commission.b. Except in HUD housing complaints, the Commission may keep settlement terms confidential at the request of the parties.c. If it appears from the facts of the complaint and the terms of settlement that the public interest has been served, the Investigating Commissioner may dismiss the complaint without a determination as to whether probable cause existed to credit the allegations of the complaint, and shall so notify the parties in writing.(f)Causal Determinations.1.Probable Cause. A determination of probable cause shall be made when the Investigating Commissioner concludes after investigation of the complaint that there is sufficient evidence upon which a fact-finder could form a reasonable belief that it is more probable than not that respondent committed an unlawful practice. Disputes involving genuine issues of material fact shall be reserved for a fact-finder at public hearing. Right to Elect Judicial Determination. If the Investigating Commissioner finds probable cause to credit the allegations of any housing complaint, including those dual filed with HUD, the Investigating Commissioner shall immediately serve notice upon complainant and respondent of the right to elect judicial determination of the complaint pursuant to M.G.L. c. 151B, § 5.
2.Lack of Probable Cause. If the Investigating Commissioner determines after investigation of the complaint that there is insufficient evidence to support a determination of probable cause to credit the allegations of the complaint, a lack of probable cause determination shall be issued and the complaint shall be dismissed. Notice of a lack of probable cause determination shall be issued within ten days from such determination.3.Multiple Determinations. Where the complaint contains claims of more than one unlawful practice, the Investigating Commissioner shall make a determination of probable cause or lack of probable cause with respect to each claim.(2)Complaint Dismissals after Investigative Disposition. The Commission may dismiss a complaint utilizing the procedures within 804 CMR 1.08(1)(b), (c), (d) or (e) at any time after the issuance of a probable cause determination pursuant to 804 CMR 1.08(1)(f)1. and 3., including that the Commission shall dismiss the complaint upon referral to the Attorney General after a party's election of judicial determination of a housing practice pursuant to M.G.L. c. 151B, § 5.(3)Notice of Investigative Disposition. The Commission shall provide written notice of the investigative disposition to the parties, including whether the complaint has been dismissed or remains open and subject to further process.(4)Reconsideration or Appeal of Investigative Disposition.(a)Motion for Reconsideration of Probable Cause Determination.1. A respondent may move for reconsideration of a probable cause determination for good cause at any time prior to the certification conference scheduled pursuant to 804 CMR 1.11(3) or within 45 days of certification to public hearing pursuant to 804 CMR 1.12 if no certification conference is held.2. A motion for reconsideration which is based on the absence of a genuine issue of material fact shall be filed after the close of discovery.3. Motions for reconsideration shall be served in accordance with 804 CMR 1.13.4. The Investigating Commissioner shall render a decision on the motion for reconsideration, as soon as reasonably practicable.5. The Investigating Commissioner may issue an order reversing the probable cause determination, reopening the matter for further investigation, modifying the probable cause determination, or taking such other action as is deemed necessary in the interests of justice.6. Upon reversal or modification of a probable cause determination, complainant does not have a right to a preliminary hearing pursuant to 804 CMR 1.08(4)(b) or a right to review under M.G.L. c. 151B, § 6 or M.G.L. c. 30A.(b)Appeal of Disposition: Preliminary Hearing. The complainant may appeal an investigative disposition entered under 804 CMR 1.08(1)(c) and (f)2. and 3. as well as a dismissal pursuant to 804 CMR 1.05(2) by filing a written request for a preliminary hearing with the Clerk's Office within ten days after receipt of the notice of investigative disposition or dismissal. The Clerk's Office shall schedule a hearing and, except for appeals filed pursuant to 804 CMR 1.05(2), shall notify all other parties of the appeal. The following provisions apply to all preliminary hearings: 1. The hearing may be held in person or in writing at the discretion of the Investigating Commissioner.2. No audio, visual, digital, or other verbatim recording of the conference may be made.3. The hearing shall not be subject to the requirements of M.G.L. c. 30A and the determination shall not be subject to Full Commission or judicial review under M.G.L. c. 151B, § 6 or M.G.L. c. 30A.4. The Investigating Commissioner shall preside at the hearing and may permit the complainant to present oral or written reasons why the determination is in error, and present supporting evidence as appropriate. Except for appeals filed pursuant to 804 CMR 1.05(2), the respondent may also be permitted to present oral or written reasons why the determination should be sustained along with supporting evidence as appropriate.5. The Investigating Commissioner may request additional information and evidence at or following the preliminary hearing.6. The Investigating Commissioner may, upon review of evidence presented:a. affirm the disposition or dismissal;b. reverse the disposition or dismissal and issue a probable cause determination;c. reopen the case for further investigation;d. modify the disposition or dismissal; ore. take such other action as deemed necessary in the interest of justice.Amended by Mass Register Issue 1409, eff. 1/24/2019.